NJ & Anor, R (on the application of) v The Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules, the Secretary of State must assess further submissions with all previously considered material and ask objectively whether they create a realistic, rather than speculative, prospect of success before a tribunal.

Where country guidance has materially changed, the decision-maker must address the claimant’s case under the current guidance. Evidence of religious activity after arrival in the United Kingdom may be material to intentions on return. Detailed and sourced evidence of current activity cannot rationally be rejected merely by relying on earlier credibility findings about alleged events abroad or on general concerns about supporting letters.

The applicants, a Pakistani sister and brother who acceptedly were Ahmadis, had previously failed in their asylum appeals. Their accounts of serious past persecution and preaching in Pakistan had largely been rejected, although their Ahmadi faith was accepted.

They later made further submissions supported by letters from the Ahmadiyya Muslim Association UK describing their religious activities in the United Kingdom. They relied on revised country guidance concerning the risk to Ahmadis who would practise their faith openly on return to Pakistan.

The Secretary of State decided on 1 October 2014 that the submissions did not amount to fresh claims. Permission was granted for the two judicial review claims to be heard together. The central issue was whether the decisions lawfully applied paragraph 353 and the current country guidance to the new evidence.

1. The claims succeeded. The Secretary of State’s decisions of 1 October 2014 were unlawful and were quashed.

2. Paragraph 353 of the Immigration Rules required the Secretary of State to consider the new material together with the material previously considered and to decide objectively whether it created a realistic prospect that an immigration judge would allow the claim. The inquiry was not whether the Secretary of State thought the claim should succeed. It required anxious scrutiny: WM (DRC) v SSHD [2008] EWCA Civ 1495; AK (Sri Lanka) v SSHD [2009] EWCA Civ 447.

3. The current country guidance in MN and Others (Ahmadis – country conditions – risk) Pakistan CG [2012] UKUT 00389 (IAC) had materially changed the relevant assessment. An Ahmadi did not have to establish that they were an exceptional Ahmadi. Risk could arise where open manifestation of faith contrary to the legal restrictions in Pakistan was genuinely and particularly important to the claimant’s religious identity.

4. The refusal letters did not explicitly confront the applicants’ case under that guidance. Their accepted Ahmadi identity, their claimed intentions on return, and their activities in the United Kingdom required direct assessment.

5. The 2014 Association letters were relatively detailed and identified their source. AB (Ahmadiyya Association UK: letters) Pakistan [2013] UKUT 00511 (IAC) did not require their wholesale rejection. Earlier concerns about evidence of past events in Pakistan did not determine the weight that a tribunal might give to evidence of recent and current United Kingdom activities.

6. The Secretary of State could not rationally conclude that no tribunal could accept that evidence and, in the light of it, find a real risk of persecution. The claims based on the revised country guidance had not yet been fully and properly considered.

This was a first-instance judicial review. The applicants’ earlier asylum appeals and subsequent applications for permission to appeal had failed. An earlier judicial review challenge was withdrawn when the Secretary of State agreed to reconsider the further submissions.

• Upper Tribunal (Immigration and Asylum Chamber): permission to bring judicial review was granted on 23 June 2015. The Tribunal quashed the fresh-claim decisions dated 1 October 2014.